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Gujarat High Court · body

2016 DIGILAW 1027 (GUJ)

Mustufakhan Ahmedkhan Pathan v. State of Gujarat

2016-06-06

S.G.SHAH

body2016
JUDGMENT : S.G. Shah, J. 1. Appellant has challenged his conviction by impugned judgment and order dated 14.8.2002 by Special Judge of Court of No. 2 of City Sessions Court, Ahmedabad City in Special Case No. 18 of 1999. The Court has awarded sentence of 6 months R.I with fine of Rs. 1,000/- and S.I of one month, in default of payment of such fine for the offence punishable u/s. 7 of the Prevention of Corruption Act, 1988 in addition to sentence of one year R.I with fine of Rs. 2,000/-, and in default of payment of fine, two months S.I u/s. 13 of the Prevention of Corruption Act, but with a direction that both the sentences shall run concurrently. 2. Pursuant to the submission of the chargesheet with allegations of commission of offence under above sections, the Special Judge has on 24.1.2001, framed charge against the appellant to the effect that on the next day of 25.10.1998, the appellant has misused his post as Constable by demanding Rs. 1,000/- as illegal gratification and bribe for not to ask for remand of complainant's son, who was arrested on 25.10.1998 under the Bombay Prohibition Act, 1949 and on 28.10.1998, he has accepted the amount of bribe. To prove such charges, prosecution has examined as many as four witnesses and produced eight documentary evidence with four muddamal articles to prove its case. The Special Judge has on appreciation of such evidence awarded sentence as above confirming that appellant has committed offence as alleged in the chargesheet. 3. In such appeal, basically now, the law is well settled whereby to verify that whether conviction is proper or not, we have to scrutinize the evidence to see that whether following four basic ingredients to confirm commission of offence under the Act has been proved or not. "a. Prior demand of bribe amount before raid; b. Demand of bribe amount at the time of raid; c. Acceptance of bribe amount; and d. Possession of tainted currency notes with the accused at the time of raid." 4. Therefore, basically we have to scrutinize the evidence to ascertain that whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm that appellant - accused has committed the offence as alleged. Therefore, basically we have to scrutinize the evidence to ascertain that whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm that appellant - accused has committed the offence as alleged. If there is no such evidence on record, then, irrespective of raid and sanction by the competent authority to prosecute the accused, the conviction cannot sustain since in criminal trial, it is the duty of the prosecution to prove its case beyond reasonable doubt, more particularly when such conviction creates a stigma in the life of the accused, if at all he has not committed any such crime. 5. At Exh. 9, prosecution has examined complainant - Iqbal Abdulbhai Luhar as PW-1. If we scrutinize his evidence in toto, then, it certainly gives an impression that his evidence is not trustworthy on several counts though he has narrated the story as per the FIR and chargesheet. However, as aforesaid, narrating a story alone cannot be treated as gospel truth as well as cogent and reliable evidence beyond reasonable doubt. It is also settled legal position that in criminal trial, the accused has to create a doubt about the evidence adduced by the prosecution and if such doubt is not cleared by the prosecution, then, generally the benefit of doubt needs to be extended in favour of the accused. Thereby, since it is not possible to prove any negative thing, the criminal jurisprudence confirms that innocence can be proved by the accused by damaging the evidence of the prosecution and creating doubt in the prosecution evidence, if at all there is no scope of proving either defence, like non-commission of offence or absence of accused at the relevant time. As aforesaid, practically, in such cases, above-referred four ingredients are required to be verified and there must be cogent and reliable evidence to prove such ingredients. As aforesaid, practically, in such cases, above-referred four ingredients are required to be verified and there must be cogent and reliable evidence to prove such ingredients. Amongst which, first ingredient can be proved generally by complainant alone because he is the only witness, who knows about the prior demand before the FIR or preparation of raid or even the raid itself and thereby, if complainant could not prove prior demand by cogent and reliable evidence beyond reasonable doubt, then, benefit of doubt needs to be extended to the accused even if evidence for rest of the ingredients may be against the accused, for the simple reason that it may be managed or arranged because of the trap against the concerned person, but evidence regarding prior demand cannot be managed or trapped since it is generally in presence of the complainant or his witness only. 6. With above background, if we peruse the evidence of complainant, in his examination in chief itself, he has disclosed that when he had been to the office of the accused, two persons had demanded Rs. 1,000/- from him. Though he identifies the accused before the Court as one of such person, who has demanded the money and had audacity to say that second person was Gadhvi, who has not demanded the money, unfortunately, investigating agency has failed to examine such second person in whose presence there was positive evidence of prior demand. Therefore, if complainant and investigating agency did not take care to examine such second person, who was present at the time of prior demand, then, there is a reason to believe that even the complainant is chance witness only with some ulterior motive, more particularly when accused was able to rebut his evidence during cross-examination so as to establish that in fact there was no cause for him for demanding any bribe because the cause for which bribe was alleged to be demanded, was not in existence i.e. when it is alleged that the bribe amount was demanded for not asking for remand of the son of the complainant, practically, on that day, remand was already granted by the competent Court and son of the accused was within police custody for the purpose of remand and therefore, there is no question of helping the complainant by not praying for remand. The other contradiction is regarding amount of bribe inasmuch as initially complainant has deposed that accused has demanded Rs. 1,000/- as bribe and he has paid Rs. 200/- on day one, but again on 28.10.1998 accused has demanded Rs. 1,000/-; whereas, in another breath he states that he has already paid Rs. 250/- and therefore, only Rs. 750/- is to be paid and that when he offered Rs. 300/- the accused has refused to accept it claiming that Rs. 1,000/- is to be paid at a time. While confirming such story, the complainant has narrated the version between him and the accused wherein complainant has confirmed that accused has conveyed him that he needs Rs. 1,000/- at a time, because he has paid Rs. 1,000/- to his Officer. If it is so, then again investigating agency has failed and erred in not investigating that who is such higher officer and to whom accused has paid any amount as alleged or there is no such factual detail at all. Therefore, though complainant has narrated all other story as suggested by prosecutor and disclosed by him in his FIR, so far as clinching evidence to prove the commission of offence, more particularly prior demand is concerned, there is no sufficient evidence or atleast evidence available on record is full of contradictions and therefore, the evidence of complainant alone is not sufficient to confirm prior demand. Therefore, there is a need of corroborating evidence of all the witnesses to complete the chain of commission of offence as alleged. Unfortunately, it is lacking in the present case. 7. The other significant admission by the claimant is regarding procedure followed during the trap when he states that though table of the accused Mustafa Khan was showing positive result, upon showing light of lamp upon it wherein presence of power was confirmed because of blue dots, but he deposed that the raiding officer has wiped out such powder by a piece of cloth and thereafter such cloth was burnt outside the office. 8. 8. If we peruse such evidence in paragraph 10 of the deposition, there are so many contradictions inasmuch on one hand, it is stated that amount was recovered from the drawer of the table of the accused and on the other hand, it was stated that clothes of the accused i.e. T-Shirt and Pant, both were checked, where no presence of anthracene powder was found even though the T-Shirt was seized as muddamal. It is also confirmed that other papers found from the pocket of the accused were not showing positive result of presence of powder and therefore, it is certain that even possession of the tainted currency notes was not proved with the accused thought it is alleged that it was recovered from the drawer of the table of the accused. But in that case, if at all tainted currency notes were found and if its presence is proved from the drawer of the table of the accused, then, the investigating agency should not have cleaned the table by a cloth and then got the cloth burnt outside the office. On the contrary, such cloth would be the positive evidence against the accused. The overall reading of the evidence on the contrary suggests a presumption against the investigating agency to the effect that they have kept a piece of cloth with powder, which was used to clean the drawer or table of the accused by such cloth so that nobody can come to know that powder is dropped on the table and to avoid the evidence of such mischief, they burnt such piece of cloth outside the office. However, the complainant has, may be innocently, disclosed such fact during evidence and it would go against the prosecution that why table has been wiped out with a cloth and thereafter, why such cloth has been burnt outside the office. So far as presence of currency notes in the drawer is concerned, again the complainant has admitted that there was nothing in the drawer and drawer was also wiped out by the same cloth. Therefore, the evidence of the complainant is not confirming commission of offence as alleged in the chargesheet though he is narrating the story of FIR and investigation in nutshell because his several admission and contradictions makes it clear that his evidence cannot be relied upon by for confirming conviction. 9. Whereas, PW-2 at Exh. Therefore, the evidence of the complainant is not confirming commission of offence as alleged in the chargesheet though he is narrating the story of FIR and investigation in nutshell because his several admission and contradictions makes it clear that his evidence cannot be relied upon by for confirming conviction. 9. Whereas, PW-2 at Exh. 12 i.e. panch witness has on the contrary came forward with altogether a different story when he deposed that when complainant has asked the accused that what is to be done of your officer, accused has stated that it is your desire, if you want to pay cost, I have to pass it on to others also. At that time, the complainant has, according to the panch witness, stated that he has brought Rs. 1,000/- and he shall pay more thereafter. Therefore, there is material contradiction in the version of the complainant and the panch witness because complainant is talking about offering Rs. 300/- only against total demand of Rs. 1,000/-, whereas the panch witness says that complainant has offered Rs. 1,000/- with a promise to pay more thereafter. The witness has further contradicted the complainant by saying that documents taken out of the pocket of the accused T-Shirt was also showing positive result of the powder, whereas complainant has stated otherwise that such material was showing negative result. However, so far as cleaning of table and drawer by the piece of cloth is concerned, this witness corroborates the version of the complainant that table and drawer was cleaned by the piece of cloth and then the cloth was destroyed by burning the same outside the office. This supports the presumption described in previous paragraph about the activity by the prosecuting agency so as to believe that the trap is managed to harass the accused. Similarly, now, the witness has contradicted himself with the complainant by saying that total amount demanded by the accused is Rs. 1,500/- as against the statement of the complainant that demand was only for Rs. 1,000/-. Similarly, there is material contradiction for the purpose of bribe when witness says that it is for releasing the son of the complainant on bail, whereas, complainant has stated that it is for not asking for remand. The fact remains that Police Constable has no right to release the accused on bail. 1,000/-. Similarly, there is material contradiction for the purpose of bribe when witness says that it is for releasing the son of the complainant on bail, whereas, complainant has stated that it is for not asking for remand. The fact remains that Police Constable has no right to release the accused on bail. During cross-examination, again, the witness has contradicted his own statement in examination-in-chief while admitting that the material received from the person of the accused was showing negative result and he has gone through the copy of panchnama for four to five times before coming to the Court and he reconfirms that the material received from the accused was showing negative result of powder. 10. Therefore, there is no positive evidence regarding possession of tainted currency notes with the accused at the time of raid, though the witness has tried to allege against the accused regarding demand. However, so far as the demand is concerned, above discussion makes it clear that there is material and vital contradictions and therefore, there is no reliable and cogent evidence without reasonable doubt to confirm the prior demand or demand at the time of raid. Whereas, so far as acceptance is concerned, when tainted currency notes were neither recovered from any part of the body of the accused or his clothes and the material recovered from the pocket of the clothes of the accused does not show any positive result of presence of powder, then, there is no direct evidence regarding personal acceptance of bribe money, but the only evidence on record is to the effect that the amount of tainted currency notes was recovered from the drawer of the table of the accused and therefore, it is submitted that it is to be considered as acceptance of bribe by the accused. However, there is no proper, cogent and reliable evidence even to confirm such presence or possession of tainted currency notes in the drawer of the table because of material contradiction in the deposition by all the witnesses and because of categorical admission of both independent witnesses that table and drawers were wiped out by piece of cloth and then that cloth was destroyed. 11. Unfortunately, the next witness being P.I. of ACB at Exh. 11. Unfortunately, the next witness being P.I. of ACB at Exh. 18, namely, Keshavlal Kodarlal Patel has now gone against the evidence on record when he deposed that even clothes of the accused were showing presence of anthracene powder. He has gone to the extent of saying that when they reached at the place, accused has taken the bribe money from his T-Shirt and placed it in the drawer of the table. If it is so, neither the complainant, nor the panch witness has deposed to that effect and in that case, there would be presence of anthracene powder at every place viz., pocked of the T-Shirt of the accused, his hands so also the drawer. However, when both previous witnesses have categorically denied the presence of anthracene powder on the body and T-Shirt so also on other material and the papers taken out from the T-Shirt pocket and therefore, there is material contradiction. However, this witness has admitted that they could not find the possession of tainted currency notes with the accused, but he felt that presence of tainted currency notes in the drawer of the accused is to be deemed as possession of the accused. 12. If we peruse the entire evidence of all the witnesses together, it certainly gives an impression that for filing such cases, the raiding party are being rewarded and therefore, when witness admits such fact that he has been rewarded for such case though he does not recollect the exact amount, there is reason to believe that the raiding party had arranged such raid for their personal gain. 13. Since the factual details may not be known to the complainant or the witness, but, now, when the investigating officer is in the box, he has no option but to admit that in fact the son of the complainant was not only taken on remand, but he was detained under PASA also and that he was otherwise declared as wanted criminal, so also the fact that he was not aware that accused is simply a Constable and hence, investigation and other powers of such case was not with the accused, but with the Police Inspector. The witness has to admit that as per the deposition of the complainant, if Rs. 250/- is already paid, then, Rs. 750/- is to be paid and not Rs. The witness has to admit that as per the deposition of the complainant, if Rs. 250/- is already paid, then, Rs. 750/- is to be paid and not Rs. 1,000/- and therefore, his deposition confirms the contradictions so far as amount is concerned. Therefore, deposition of this police officer and deposition of other police officer as PW-4, at Exh. 20, namely, Hareshbhai Prafulchandra Agrawal shall not be sufficient to confirm conviction because Agrawat has simply recorded some statement and mechanically filed the chargesheet. 14. As against above evidence by the prosecution, the accused has stepped into the witness box for adducing his evidenced to disclose the correct facts in nutshell and offer himself for cross-examination by the prosecution and therefore, now, if prosecution could not rebut his evidence in examination in chief, then atleast, it is certainly an evidence in favour of the accused, which cannot be discarded in absence of any other evidence in rebuttal. He explained in nutshell about the investigation and offence against the son of the complainant wherein he specifically stated that to avoid the arrest of his son, who was otherwise declared wanted, the complainant is misguiding the investigating agency and quarreled with them, but, ultimately, because of his endeavour, the investigating agency could find out the whereabouts of son of the complainant and therefore, he joined the police party to arrest the son of the complainant and they arrested him, where complainant was also present with his son, namely, Abid @ Dongo was arrested with 77 bottles of English liquor and his higher officers being the investigating officer, has continued the investigation and prepared a case against him and therefore, complainant was unhappy. He further alleges that during such period, complainant was pressing him that since we both are muslims, he should help the complainant, but he refused to help the complainant. However, his refusal was not accepted by the complainant and therefore, in fact the complainant had given him threat that he will see him i.e. he will harass him. He further alleges that during such period, complainant was pressing him that since we both are muslims, he should help the complainant, but he refused to help the complainant. However, his refusal was not accepted by the complainant and therefore, in fact the complainant had given him threat that he will see him i.e. he will harass him. So far as incident is concerned, accused has narrated in detail that at the relevant time because of hot discussion, he was little bit angry, but at that time one informer had called him and therefore, he had been out of the office for a while, when probably the complainant and panch witness have managed to trap the tainted currency notes in his drawer and when he returned back to his desk, immediately the raiding party has entered and conducted the procedure of raid and considered it as a successful raid. 15. The above discussion makes it clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction. (However, the Special Judge has though recorded in favour of the accused in paragraph 34 and more particularly, when it is categorically observed that there might be variation in date, time and place, it can be overlooked). This goes to show that the Special Judge has blindly relied upon the story of the prosecution and confirmed that accused has committed crime and awarded sentence as aforesaid, but scrutiny of evidence, which is discussed herein above makes it clear that there is no cogent, reliable and clinching evidence beyond reasonable doubt to confirm that accused has committed offence as alleged. As aforesaid, there are material contradictions in statement of all three witnesses. There is no positive evidence regarding all the four ingredients to confirm the commission of offence. 16. It is submitted by the appellant that trial Court has failed to appreciate the provisions of Section 144of the Evidence Act while considering the contradictions. The trial Court has also failed to rely upon the police statement against the evidence of such witnesses and therefore, conviction cannot be upheld. 17. 16. It is submitted by the appellant that trial Court has failed to appreciate the provisions of Section 144of the Evidence Act while considering the contradictions. The trial Court has also failed to rely upon the police statement against the evidence of such witnesses and therefore, conviction cannot be upheld. 17. For such determination, I am relying upon following decisions:-- "(A) P. Satyanarayana Murty v. District Inspector of Police, State of Andhra Pradesh, reported in 2016(1) SCC (Cri.) 11; (B) Selvaraj v. State of Karnataka, reported in, 2016(1) SCC (Cri.) 19; (C) Krishan Chander v. State of Delhi, reported in, AIR 2016 SC 299." In all such cases, it is heard that for confirming conviction, all 3 below-mentioned actions are must and should be proved by prosecution beyond reasonable doubt viz; (i) prior demand (ii) demand at the time of trap and (iii) acceptance of the amount. In absence of specific and clinching evidence to prove all such acts by the accused, there cannot be any conviction. Evidence of other witnesses may not be sufficient to prove demand even though recovery is proved. In that case, benefit of doubt is to be extended to the accused. Mere acceptance of any amount alone by way of illegal gratification or recovery thereof de hors the proof of demand, ipso facto reiterated, would not be sufficient to bring home the charge. Thereby, admission and acceptance of bribe is sine qua non for constituting offence under the Prevention of Corruption Act. If complainant or witness turns hostile on the point of demand and acceptance of bribe and when panch witness did not hear the conversation between accused and complainant at the time when complainant had gone to give bribe money, it is held by Hon'ble Supreme Court of India that factum of demand cannot be considered as proof and thereby, conviction was set aside. 18. Therefore, the present Criminal Appeal is allowed. The impugned judgment and order dated 14.8.2002 by Special Judge of Court of No. 2 of City Sessions Court, Ahmedabad City in Special Case No. 18 of 1999, is quashed and set-aside. Thereby, appellant is acquitted from the charges leveled against him. Since the appellant is on bail, his bail bond shall stand cancelled. 19. R & P be sent back forthwith to the concerned trial Court.